What does it take to be a non-state armed group?

Organizing Rebellion: Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law

Armed groups are involved in the vast majority of today’s armed conflicts and crisis situations, and this trend is likely to continue. It is suggested that over recent years the number of groups involved in armed conflicts has quadrupled. For instance, studies have found that at some point, hundreds or even thousands of different armed groups operated in Syria. While in the late 20th century armed groups were normally clearly defined entities with distinct political and security agendas, today’s armed groups are often fractured, less structured, or operating in loose coalitions and with diverse agendas. Persons affected by their conduct may ask: are there any international rules regulating these groups? States fighting an armed group have to ask themselves: what group we are facing, and what level of violence are we permitted to apply in fighting them? Likewise, States considering whether to support an armed group have to carefully examine the group’s behaviour under international law. And in light of the seemingly unstoppable violence of some of these groups, at least some parts of the international community call for justice and for holding rebels to account for their crimes.

When examining possible international legal obligations of rebels, insurgents, terrorists, freedom fighters, or whatever other label one may give to non-state armed groups, the first and most elementary question is: is this group relevant under international law? In situations of conflict and violence, four elements can help us to respond.

1.It depends on the field of international law we are looking at

International law does not provide one single definition for non-state armed groups to be an “international legal person” vested with a fixed set of international rights and obligations. If we want to know whether a certain group is party to an armed conflict governed by international humanitarian law (IHL), bears human rights obligations, or if its members can be criminally responsible for certain acts, we have to examine the group in light of the body of law we are looking at. Having obligations under one field of law, or being able to commit one sort of international crime, does not necessarily mean that a group will also bear obligations in another field of law. Concretely, while an armed group may become party to an armed conflict, bound by IHL, and therefore among other things obliged not to torture prisoners, it is a completely different question of whether the same group is also obliged to fulfill the progressive realization of certain human rights in territory under its control (if we agree that armed groups have human rights obliagtions at all).

While in the late 20th century armed groups were normally clearly defined entities with distinct political and security agendas, today’s armed groups are often fractured, less structured, or operating in loose coalitions and with diverse agendas.

2.Not all “rebels” are automatically parties to armed conflicts

Armed groups emerge in different ways. Broadly speaking, while some consist primarily of defecting armed forces, as Mao Tse Tung remarked, others “spring from the masses of the people [and] suffer from lack of organization at the time of their formation.” Legally speaking, not all groups can be parties to an armed conflict. Looking only at the characteristics that a party to an armed conflict must have (and not at the other recognized criterion for the classification of non-international armed conflicts, namely the level of violence), three elements are key. First, an armed group must be a collective entity, meaning that it has a certain command structure that distinguishes the group from its individual members. Second, the group must have sufficient manpower, logistics (including weapons), and coordination to engage in intense and sustained violence. And third, the group needs to have a minimum level of discipline and the ability to implement basic rules. If that was not the case, imposing any rules on them would fail from the outset.

3.If members of such groups are able to commit an international crime, they are accountable

Once an armed group is party to an armed conflict, its members are liable for war crimes. However, it has been debated whether the commission of a “crime against humanity” or “genocide” requires State involvement. Under the Rome Statute of the International Criminal Court, a crime against humanity requires a “State or organizational policy” behind the crimes (article 7(2)(a)). International courts have been clear that the required “organizational policy” can be that of an armed group. Indeed, if an armed group has the capacity to develop a criminal policy and to commit an attack against a civilian population in accordance with that policy, these acts may amount to crimes against humanity. If “unimaginable atrocities” (preamble of the Rome Statute) are committed, it should not matter whether the group behind these crimes is “State-like” or not—perpetrators should be accountable.

4.Armed groups differ widely—and the law needs to take this into account

The nature, organizational structure, and capacities of armed groups vary significantly. While some groups hide in the bushes and commit occasional hit-and-run attacks, others control territory in a State-like manner. In particular when considering whether armed groups should—or do—have human rights obligations, these differences need to be taken into account. When analysing the need of possible human rights obligations for armed groups, the first question should be whether, and to what extent, the State in whose territory the group operates is able to ensure respect for human rights by the group. If the State is unable to do so—either because it lost control over parts of its territory or is otherwise failing—there are strong reasons to demand armed groups to respect human rights. However, in practice and as a matter of policy, the question arises of whether it is at all feasible, or desirable, to require the group to also protect or fulfill the human rights in question? The response differs from case to case.

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